Monday, January 26, 2009

In the RIAA's case against Usenet.com, Inc., Arista Records v. Usenet.com, Inc., the Magistrate Judge -- in a 73 page opinion -- has partially granted plaintiffs' motion for discovery sanctions for spoliation of electronic evidence. The Court declined to consider portions of the defendants' expert witness's declaration due to the expert's failure to meet Daubert reliability standards as to those portions.

I assume you are both referring to Judge Trager's opinion in the Eastern District of New York in UMG v. Lindor, where he denied our motion to exclude the testimony of the RIAA's expert due to his admission that neither his work, nor the work of MediaSentry upon which his work was based, met ANY of the Daubert reliability standards.

In my opinion Judge Trager's decision was incorrect, and not consistent with (a) the Federal Rules of Evidence, (b) applicable Supreme Court and Second Circuit authority, or (c) the vast majority of cases in the Eastern District and in the Southern District.

So no I don't think there are different standards for plaintiffs and defendants. I just think one District Judge in the Eastern District made an extreme error.

Do they realize the sheer amount of data flow that goes on in usenet? Most usenet providers dont' keep more than a day's worth of stuff at any given time, sometimes less, just because of the sheer mass of what gets passed through.The riaa sent them effectively a DMCA take down notice. They did take the groups down, and then RIAA wants them to put them back up and collect usage data to see who downloaded them?

That's highly invasive. It would also give them TONS of false positives, as you can be subsribed to that group, and download the headers, without necessarily downloading the actual files.

Additionally, if RIAA really wanted those files, they could themselves subscribe to an upstream usenet group and save them to their drives as much as they want. Has the RIAA not heard of Google cache, or the back in the day machine that lets you see old versions of many sites?

Wait, defendant verified 4 days ebfore that the websites were available, but didn't have the foresite to take screenshots?

This was a fishing expedition, Usenet is being sued because they failed to provide the RIAA with grandmothers to sue.

Usenet sold their services knowing that it will be used to download large binary files.

It was widely advertised on their website that you could download thousands of songs and movies. They only recently modified their website to not make such express claims. In any regard, the Supreme Court has already stated that whoever distributes a device and encourages its capability to infringe copyright is liable for the underlying acts of infringement.

Usenet sells accounts based on the amount of bandwidth that you would use (in the GBs). If you are just downloading articles, you will never use more than 1 GB in a month.

It was quite obvious that they were catering to people who wanted to download vast amounts of files, including music files.

Whether or not those music files were copyrighted and whether or not the record companies held copyrights to them is unclear thanks to their destruction of the evidence.

It is clear that they destroyed evidence. Disabling access to the newsgroup has no effect on preserving the data that was contained in that newsgroup. They themselves said that the music newsgroups used only one server and did not use it to its full capacity. So they would have no trouble retaining that data.

If they are in control of 32 servers, the obviously have access to server logs. What they should have said is that they didn't maintain server logs. There would be no way to prove otherwise.

So the lesson learned (again) is not to destroy evidence under any circumstances. I have seen countless cases where the Defendant destroyed evidence, even in cases when it is not necessary because the matter of law is on the side of the Defendant. It ALWAYS ends bad, and it ALWAYS puts the Defendant in much worse circumstances than he was before. If you maintain the evidence, then you can (a) delay producing it until the other side produces theirs, (b) argue with the Court that the evidence is irrelevant to the case, privileged, or proprietary (c) have your expert witness refute validity, significance, or reliability the evidence and/or (d) demonstrate evidence that contradicts it.

But when you destroy evidence the Court will at the minimum assume that the evidence would have worked against you, and in some cases will also assume that the evidence would have proven that you are liable for damages as a matter of law.

By way of example, if you downloaded some MP3s, and preserved them as evidence, those MP3s may be used to prove that you downloaded MP3s (as a matter of fact). But that does not prove that downloading those MP3s was an act of copyright infringement.

If you destroyed the evidence, then the Court would assume that you downloaded those MP3s (as a matter of fact) and would probably assume that those MP3s demonstrated copyright infringement (as a matter of law).

In many cases, it will enter a default judgement. In at least two cases that I have seen, the Defendant destroyed relatively minor evidence but the judge chose to grant the Plaintiffs a default judgement in the maximum amount ($150,000 per work).

I am a business lawyer in New York City, practicing at Ray Beckerman, P.C.. The purpose of this site is to collect and share information about the wave of sham "copyright infringement" lawsuits started by four large record companies, and other areas of concern to digital online copyright law, and to internet law in general. -Ray Beckermanbeckermanlegal.com(Attorney Advertising)

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2." -Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove